The citizens’ assembly on abortion in Ireland – a pre-emptive critique of anticipated hype

For readers living in any country that is not Ireland, you might have missed it but the campaign to legalise abortion has made huge mileage over the last few years and – not wanting to jinx it – will probably win a fairly unrestrictive regime later this year. A central element in this struggle has been the Citizens’ Assembly on the 8th amendment: a panel of 99 randomly selected people from across the country charged with making recommendations to the government in terms of what should be done regarding a constitutional article that currently guarantees the right to life of unborns and therefore effectively removes decision-making rights from women within the borders of the irish state about the functioning of their own bodies. This article has led to some barbaric treatment of women including the X case – a fourteen year old who was raped, planned to travel to the UK to have an abortion, and when the family asked the police if DNA from the aborted foetus would be admissible as evidence against the rapist, the state sought and won (later overturned on appeal) an injunction to prevent her from leaving the country in case she might go and exercise control over her own body. That was in 1992. Twenty years later, an Indian woman called Savita Halappanavar died in hospital when her pregnancy began to miscarry and caused an infection in her blood. Early on during the miscarriage, she requested the pregnancy be terminated, which would have saved her life, but was told “this is a Catholic country”.

The citizens’ assembly sat and deliberated for seven months in 2017 before finally recommending unrestricted access to abortion up to 12 weeks of pregnancy. And despite a cynical attack from the ageing political class and establishment media which framed these recommendations as extremist, a date for a constitutional referendum has been set for next month, May, and it looks likely that it will be easily won. On paper this sounds like a positive example of participatory democracy at work. And that’s exactly what I’m afraid of and why I’m writing this piece. On paper, and with the main details, I can already see liberal and progressive journalists and political science researchers praising it and urging other European countries to implement similar structures. What I am afraid of is that said journalists and researchers will attribute the ‘success’ of the experiment to its design features and hail it as a model to be replicated. So I’m going to give a pre-emptive correction to this view.

But first, the background. The Irish state inherited a law from the british colonial government, but after independence when the british government legalised things, Ireland remained stuck in the dark ages. Which gave rise to the practice of travelling across the water for those who could afford it, while backstreet abortions or being forced to carry an unwanted pregnancy was the lot for those who could not. This regime was not enough for some reactionaries, who in the 1980s formed a campaign to have foetuses’ right to life made constitutional. The governments of the day were slaves to the power of the catholic church and so organised a referendum which was passed in 1983 as the eighth amendment, which effectively prevented any legal liberalisation. Then there was the X-case as outlined above. Although the horrific injunction imprisoning a teenage rape victim was initially granted, this ruling was subsequently overturned in a higher court, which argued that the right to life of a foetus does not outweigh the right to life of a pregnant mother, including if she feels suicidal.

In normal circumstances, a ruling like this would lead to legislation to establish this principle in law, but successive governments have been happy to shit on women rather than risk alienating the church or their conservative support base. Instead you had what is euphemistically known as an Irish solution to an Irish problem: abortion is unconstitutional, except in some cases; but the state isn’t obliged to tell you want those case are; certain abortions could be legal in Ireland, but the state doesn’t know and won’t inform the medical profession or women, so it is mostly up to the conservatism and fear of legal consequences of individual doctors; people may travel to access abortion, if they have the means, but the role of state-based medical boards is a grey area; giving out information on the possibility to travel is also a grey area.

And that was how things stayed until into 2010-2013. There was always a pro-choice movement but they were successfully demonised and liberal public discourse consistently gave ‘balance’ between ultra conservatives and moderate conservatives. But then there were two events which shook things up and injected this movement with anger and momentum. First, three women took a court case against the state claiming that the regime violated the European Convention of Human Rights. They weren’t entirely successful, but the court did rule that chaotic and uncertain environment where women cannot figure out what their rights are, this was a violation of the ECHR. This led to a government-appointed body to review the situation and announced their recommendations that the state was obliged to provide ‘clarity’. This announcement came in 2012. The very next day, news broke of the death of Savita Halappanavar, mentioned above. The widespread disgust that people felt on hearing about her treatment translated into growing support and visibility and acceptability for the pro-choice movement, which forced the government to do something. That something was the diplomatically and ambiguously titled ‘Protection of Life during Pregnancy Act’ in 2013. For all the time it took to produce, it didn’t do much more than implement both the eighth amendment from 30 years earlier and the X-case ruling from 21 years earlier into law (i.e. abortion is possible if the life of the woman is in danger including through suicide) so as to provide the needed ‘clarity’.

So far, so familiar. Anybody can look that up on wikipedia. Oh, did I fail to mention that under the 2013 law, whether a woman was considered suicidal would have to be approved by a 3-5 member panel of medical professionals (so, quite far from a woman having choice over her own body). Or that it established that women having unapproved abortions faced up to 14 years in prison. And that the regressiveness of it was illustrated the following year when an asylum seeker who had been raped in her home country discovered she was pregnant in Ireland, wanted to terminate but could not travel to the UK under the terms of the asylum application, became suicidal, went on hunger strike, the courts ordered that she be force-fed and then her pregnancy was delivered by c section. You can also look that up on wiki.

But from here there are a few points that are harder to come by. Officially, the CA was established as “an exercise in deliberative democracy, placing the citizen at the heart of important legal and policy issues facing Irish society today”, and has been marketed as the brainchild of grown up visionary politicians. However, anybody could have told you back in 2016 that the real reason for establishing the CA was to avoid being seen to make a political decision. There is an influential conservative minority to whom the political class has always either explicitly or by default given deference. But over the last eight years or so, the pro-choice silent majority has been growing in confidence with pro-choice individuals realising that their views are not as isolated as they are often told. So, along with the growing momentum of the movement, the scandal of high-profile abhorrent cases such as Savita Halappanavar and anonymous victims of the courts, politicians were caught between a rock and a hard place: do nothing or do something, either way you leave an angry constituency royally pissed off. Some limited concessions were granted with the 2013 PoLDP act but it was clear that the government were not powerful enough to keep the growing movement in check forever and that further, limited, concessions were on the cards. The CA was a way to disarm the movement with these kinds of limited concessions without losing credibility with their conservative support base through being the ones to grant those concessions.

What they didn’t realise was the extent of the gulf between themselves along with their conservative support base on the one hand and the values among the younger, less well-paid, more female, wider population. And so, 99 randomly selected people rocked the establishment through recommending something that wasn’t even on their radar: unrestricted access to abortion up to 12 weeks.

The implicit message behind each of the statements was that the 99 members of the CA (and not the political class or establishment media) were out of touch with the public and that visionary deliberative democracy would be given the shaft and a referendum would have to contain something much more moderate if it was to have a chance of passing. And they were on track to get away with this as alternative watered-down proposals were being drafted. But then came a poll in late 2017 which found that 60% of people supported abortion upon request, and even higher numbers favouring abortion given certain circumstances. In other words the poll directly contradicted the spin emanating from the political and media establishment: the public was of a broadly similar opinion to the CA, and actually it was political class who are out of touch.

Faced with this evidence, the establishment class found themselves backed into a corner. A strategy to disarm a movement through granting limited concessions, but at the same time not be seen to be the ones granting those concessions turned out to be a bungle and has put on the table a far greater devolution of power with respect to women exercising choice over their bodies than was ever expected. A referendum was announced for May, and at the time of writing looks likely to be won.

So what were the keys to success of the CA? Two things: (1) a miscalculation on part of the government and (2) a movement of committed activists who knew every cynical trick of the government as they tried to regain ground lost through this miscalculation and who knew how to respond to it. So there you have it, for all these political scientists or functionaries who want to replicate the CA model, this is something you won’t find documented anywhere. But interview anybody involved in the movement and they will give you a perspective something like this. And make to include those two recommendations – government miscalculation and strong movement – in your report to the European Economic and Social Committee or your paper in the European Journal of Law and Public Administration.